Smith: Defining the Balance of Powers

Jan. 21, 2013

Web editor’s note: The following is a post made on Facebook by Larimer County Sheriff Justin Smith on Monday January 21, 2013. It has been republished here with his permission.

It seems altogether appropriate to write this piece today on the day that we celebrate the civil rights achievements of the late Martin Luther King Jr. Dr. King was a champion of the principle that all men are created equal and we should celebrate that idea every day.

Since I wrote, “Preserving Our Constitutional Republic” last week, I’ve been challenged by some media outlets to clarify a few points. In the interest of keeping what I had said short, some of my further explanations had been left on the cutting room floor. So I would like to answer a couple of valid questions that were raised as succinctly as I can.

“Do you rule on the Constitutionality of laws?” No. That is ultimately done through the court system, concluding at the United States Supreme Court if necessary. However, the more relevant question would be “Do Sheriffs have discretion in how they administer and enforce laws?” The answer by all legal scholars is unequivocally, yes. In fact, all elected executive branch officials have some of that discretion. That is one of the ways that power is balanced in our government. Many would argue that the executive branch of our government, of which the Sheriff’s Office is a part, has a duty to use discretion in the enforcement of laws. For example, not every speeder gets a traffic citation, nor is every trespasser arrested and jailed. At the federal level, the current President has chosen to selectively enforce certain drug and immigration laws that are on the books. A Sheriff’s discretion is no different. He or she must administer and enforce the laws in a way that meets their community’s needs and desires.

The second major point that was raised by some was in response to my statement that the Office of Sheriff is an independent office. One news publication went so far as to conclude this was a signal that Sheriffs in this state were “going rogue.” While that makes a great headline, it’s not an assertion that is factually correct.

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The independence of the County Sheriff in Colorado can be equated to the independence of the Attorney General for the State of Colorado. Both officials have statutory mandates to meet, but how they meet those is determined by the officeholder.

For instance, when Colorado’s Attorney General Suthers chose to file suit to stop the implementation of the federal healthcare law, that certainly wasn’t at the direction of the Governor nor the legislature. Both the Governor and the majority of the State Senate were in favor of that law. However, the Attorney General exercised his independent duty in taking that action. Similarly, Sheriffs have independent duty in enforcing laws and providing protection in their counties. That can be best illustrated by the actions of Sheriffs across the state during last summer’s wildfires. Sheriffs, not County Commissioners, were in charge of responding to and extinguishing those fires.

As we move forward in this great public policy discussion about ensuring public safety in the wake of a tragic series of violent mass murders, it’s important that we find sensible, balanced solutions to the complex problem of violence in our society. What works in Denver may have the opposite effect in Jackson County. We all agree that we must address the broken and underfunded mental health system in our state and we must have a serious discussion about how society seems to glorify criminal violence. I encourage all parties to refrain from labeling or name calling. Those tactics don’t advance the public debate.

I would also like to see the Governor of Colorado and the members of the legislature reach out to the County Sheriffs and listen to their counsel in statewide discussion about the solutions to prevent such horrific violence from occurring in our communities in the future. I believe that such carefully crafted solutions are the key to providing for a better future for our state and our nation